Calif. side steps 1971 case

California decision side steps 1971 Baker v Nelson ruling
Historical case involved application for a marriage license by same-sex couple from Minneapolis
By Tim Campbell
Copyright September 1, 2004

The California Supreme Court debated thoroughly then side-stepped a 1971 U.S. Supreme Court decision involving Minneapolis residents Jack Baker and Mike McConnell when it ruled that San Francisco officials overstepped their authority when they issued over 4,000 marriage licenses to same-sex couples earlier this year.

Baker and McConnell applied for a marriage license May 18, 1970 in Minneapolis. A court clerk refused to issue them one. The Minnesota Supreme Court upheld that clerk’s refusal. Subsequently, the U.S. Supreme Court summarily refused to review that case "for want of a substantial federal question."

Lavender Magazine is currently following step by step, a new lawsuit filed by Baker and McConnell to gain recognition of marital rights they acquired on September 3, 1971 when they were married with a license issued to J. Michael McConnell and Pat Lyn McConnell.
After Baker v Nelson, how dare you, San Francisco!

The California high court reasoned in part that the decision in Baker v Nelson barred San Francisco officials from claiming they assumed "reasonably" that laws against same-sex marriage were unConstitutional.

The California court insists, however, that it is not ruling on the constitutionality of laws prohibiting same-sex marriage, only on whether San Francisco officials exceeded their rights by performing same-sex marriage.

The essence of the California decision is that "Ehen the statutory requirements [for marriage] have not been met, the county clerk and the county recorder are not granted any discretion under the statutes to issue a marriage license or register a certificate of registry of marriage."
Echoes of Minneapolis, 1970?

Interestingly, the legal battle for gay marriage in America began May 18, 1970 when a Minnesota clerk named Nelson refused to issue a license to a same-sex couple. To this day, that couple claims to have met all the written statutory requirements for marriage in Minnesota.
The Minnesota marriage statute at the time said nothing about same sex marriage. Eventually, the Minnesota Supreme Court found Nelson’s refusal to issue them a license, following his instinct about what the marriage law should forbid, legally permissible. Subsequently, the U.S. Supreme Court summarily dismissed the Baker v Nelson "for want of a substantial federal question."

The California high court quoted an earlier court to justifying the core of its legal decision. "A ministerial act is an act that a public officer is required to perform in a prescribed manner in obedience to the mandate of legal authority and without regard to his own judgment or opinion concerning such act’s propriety or impropriety, when a given state of facts exists." (Underscoring added.)

What San Francisco "could have done" according to high court.
Instead of using mass same-sex marriages to force the issue of Constitutionality on the courts, the California high court suggests a remedy. "If the local officials Eelieved the state’s current marriage statutes are unconstitutional and should be tested in court, they could have denied a same-sex couple’s request for a marriage license and advised the couple to challenge the denial in superior court."

Apparently, the California court does not see the irony of its own conflicting statements. First, it argues in one place that Baker v Nelson should have forewarned San Francisco against performing same-sex marriages. Baker v Nelson says states can refuse to license same-sex marriages.

Later, it recommends someone in San Francisco could have brought another suit like Baker v Nelson.

Baker v Nelson debated then cast aside

Baker v Nelson plays a crucial role in the arguments in this case from both sides.
The California Attorney General argues that the summary refusal of the U.S. Supreme Court to review Baker v Nelson "definitively establishes that, under current federal law,a statute limiting marriage to a man and a woman does not violate the federal Constitution."

San Francisco argues, on the contrary, that "when there have been subsequent doctrinal developments in the United States Supreme Court that undermine the holding in a summary dismissal, the lower courts are not bound to follow the summary dismissal as controlling authority."

San Francisco argues further that there have been precisely such subsequent doctrinal developments in the Supreme Court, particularly its ruling that sodomy laws may not discriminate against people on the basis of their gender or sexual orientation.
The California Supreme Court avoids, or claims to avoid this problem through its ruling that a reasonable official could find the current California marriage statutes valid.
Baker and McConnell’s current lawsuit: McConnell v USA

Naturally, Baker and McConnell claim that state of federal laws passed since September 3, 1971 are not relevant to their current lawsuit. Nor are court decisions rendered after that date, according to America’s first gay married couple.

Baker and McConnell admit that they have already lost their day in court (due process) over their first application for a marriage license. Their current lawsuit, McConnell v USA, is about a different scenario. After being turned down in Minneapolis, Baker and McConnell applied for a marriage license in Mankato, Minnesota. They got that license and were subsequently married by an authorized minister. They claim they have never had their day in court over that marriage.

Furthermore, Baker-McConnell applied for and got this marriage license a full month prior to the Supreme Court decision in Baker v Nelson which says states can prohibit same-sex marriage. Baker v Nelson may or may not be ruling now. On September 3, 1971 it did not yet exist.

California Supreme Court did not rule on same-sex marriage

Throughout this long decision (over 100 pages), the California Supreme Court insists it is not ruling on the constitutionality of laws against same-sex marriage. However, it does rule without blushing that "a reasonable official" could believe that laws like DOMA and the California statute banning same-sex marriage are constitutional.

"Amazing how reasonable prejudice seems to those still stuck in it!" commented Mlle Liberty, perhaps the oldest living drag queen still to be found fully clothed and live on the Internet. Where is Sister BoomBoom now that San Francisco really needs her?

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